Court of Appeals of Texas, Fourth District, San Antonio
the 186th Judicial District Court, Bexar County, Texas Trial
Court No. 2016CR0549 Honorable Jefferson Moore, Judge
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C.
Martinez, Justice Luz Elena D. Chapa, Justice
Bryan Marion, Chief Justice.
convicted appellant David Asa Villarreal
("Villarreal") of murder with a repeat offender
enhancement and sentenced him to confinement for sixty years.
In two issues on appeal, Villarreal argues the trial court
erred by admitting hearsay testimony and by limiting his
ability to confer with counsel during an overnight recess in
violation of his Sixth Amendment right to counsel. We affirm
the trial court's judgment.
first issue, Villarreal argues the trial court erred by
admitting, over his hearsay objection, testimony regarding
the contents of a text message sent on the night of the
murder by the victim to Veronica Hernandez, a mutual friend
of Villarreal and the victim. During Hernandez's direct
examination, the following exchange occurred:
Q. [by the prosecutor] So when [Villarreal and the victim]
got back, what happened after that?
A. [by Hernandez] [The victim] sent me a text and he said-
[DEFENSE COUNSEL]: Objection, hearsay, Your Honor. And lack
of foundation, especially when it comes to cell phones and
spoofing and phone numbers and who actually sent from what
phone. I don't think the proper foundation has been laid
for her to know exactly who sent what message.
THE COURT: It's overruled. Go ahead.
Q. [by the prosecutor] Being that you hung out with [the
victim] a lot, were you familiar with his phone number?
A. [by Hernandez] Yes, ma'am.
Q. Did you have it programmed in your telephone[?]
A. Yes, ma'am.
Q. Did you text [the victim] a lot?
A. I did.
Q. Okay. And it was common for you guys to have conversations
over text messages?
A. Yes, ma'am.
Q. Okay. So that night, did you end up spending the night?
A. No, ma'am.
Q. Why not?
A. He told me-[the victim] told me that [Villarreal] wanted
to work things out, and he was trying to make peace with
[Villarreal]. That was-
Q. Were they having problems in their relationship?
A. I guess so.
[DEFENSE COUNSEL]: Objection then to the speculation.
THE COURT: Overruled. Go ahead.
prerequisite to presenting a complaint for appellate review,
the record must show the complaint was made to the trial
court by timely objection. Tex.R.App.P. 33.1(a)(1). Where the
complaint raised on appeal does not comport with the trial
objection, nothing is preserved for our review. Clark v.
State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012);
Huerta v. State, 933 S.W.2d 648, 650 (Tex. App.-San
Antonio 1996, no pet.). "In addition, a party must
object each time the inadmissible evidence is offered or
obtain a running objection." Valle v. State,
109 S.W.3d 500, 509 (Tex. Crim. App. 2003). "An error in
the admission of evidence is cured where the same evidence
comes in elsewhere without objection." Id.
although the trial court overruled Villarreal's initial
hearsay objection, Hernandez did not immediately testify
regarding the contents of the victim's text message.
Rather, after answering several additional questions
regarding her familiarity with the victim's telephone
number and the frequency of her communications with the
victim, Hernandez eventually relayed the contents of the
victim's text message in response to a different
question. Villarreal objected to Hernandez's response to
the latter question on the basis of speculation but not
hearsay. Accordingly, because Villarreal failed to obtain a
ruling on a running objection or to re-urge his objection to
the testimony on the basis of hearsay, his hearsay complaint
is not preserved. Villarreal's first issue is overruled.